Search form

Elektra v. Barker

Elektra v. Barker

This is one of the thousands of cases filed by RIAA member companies against individuals for P2P file sharing. EFF filed an amicus brief on behalf of the defendant asking the court to reject the recording industry's claims that file sharing infringes the distribution right. (According to the recording industry simply "making available" a file on a P2P network infringes the distribution right.)

EFF's brief in this case argues that a copyright owner's distribution right only reaches material objects -- mere transmissions never infringe the distribution right. The CCIA filed an amicus brief arguing that merely "making available" does not infringe the distribution right unless an actual dissemination of the file is proven. The MPAA filed an amicus brief supporting the recording industry as did the Department of Justice.

In March 2008 the court issued its ruling stating that "an offer to distribute ... for the purpose of further distribution" may be enough to violate a copyright owner's distribution right. The court declined to address EFF's "material objects" argument noting that the defendant's lawyers did not raise it in their brief.

EFF continues to fight the recording industry's "making available" theory of copyright infringement. Two courts have rejected the Elektra v. Barker analysis of the issue and further litigation is likely before the question is clarified. For more on this topic check this page summarizing EFF's efforts on behalf of file-sharers.

Related Content

Joining the ranks of federal district judges in Arizona and Massachusetts, District of Minnesota Chief Judge Michael Davis today concluded [44-page PDF] that simply making a music file available in a shared file does not violate copyright law, and ordered a new trial in Capitol Records v....

Yesterday saw two important court decisions in the file-sharing wars, both favoring defendants. First, Tanya Andersen, a single mother on a disability pension who successfully fought off allegations of illegal file-sharing, was awarded almost $110,000 in fees and costs. Andersen had insisted she had done nothing illegal, and demanded...

Same day, two federal courts, two different rulings on "making available."
As we mentioned yesterday, a New York court in Elektra v. Barker gave a boost to the recording industry by ruling that an offer to distribute a file on a P2P network can infringe the distribution right...

Yesterday, a federal court ruled in Elektra v. Barker that "an offer to distribute ... for the purpose of further distribution" may be enough to violate a copyright owner's distribution right. This ruling opens the door open for civil attempt liability when it comes to distribution -- in...